(Bloomberg) The US Supreme Court’s ruling Monday that Donald Trump has some immunity from criminal charges over his efforts to overturn the 2020 election results dealt a near fatal blow to the push by prosecutors to go to trial before the November election.
The justices, voting 6-3 along ideological lines, ruled for the first time that former presidents are shielded from prosecution for some official acts taken while in office, saying that a federal appeals court was wrong to reject Trump’s immunity arguments out of hand.
“The president is not above the law,” Chief Justice John Roberts wrote for the court. “But Congress may not criminalize the president’s conduct in carrying out the responsibilities of the executive branch under the Constitution.”
The majority told US District Judge Tanya Chutkan, who is overseeing the case, to decide the full extent to which the allegations are off limits to prosecution.
The court stopped short of tossing out the indictment, as Trump had sought. But the ruling’s timing nonetheless makes it a tactical triumph for the former president, effectively shutting the narrow window for Special Counsel Jack Smith to put Trump in front of a jury in Washington before Election Day on Nov. 5.
Trump is now likely to reach the November election with only one of the four criminal cases against him having gone to trial. He was convicted in New York state court May 30 for falsifying business records to conceal a hush-money payment to porn star Stormy Daniels before the 2016 election. The Washington trial has been on hold while Trump pressed his immunity case.
Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson dissented. Sotomayor said the decision is based on “misguided wisdom” and “reshapes the institution of the Presidency.”
“It makes a mockery of the principle, foundational to our Constitution and system of government, that no man is above the law,” Sotomayor wrote for the group. “With fear for our democracy, I dissent,” she said at the close of her 30-page opinion.
Trump hailed the ruling. “BIG WIN FOR OUR CONSTITUTION AND DEMOCRACY. PROUD TO BE AN AMERICAN!” he said on a post on his social media network Truth Social.
All three of the justices Trump appointed — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — were part of the majority, along with Justices Clarence Thomas and Samuel Alito.
The latter two justices both faced calls to recuse from the case, Thomas because of his wife’s support for the push to overturn the election results, Alito because flags flown at his homes allegedly suggested sympathy for those efforts.
“This disgraceful decision by the MAGA Supreme Court – which is comprised of three justices appointed by Mr. Trump himself – enables the former president to weaken our democracy by breaking the law,” said Senate Majority Leader Chuck Schumer, a Democrat from New York.
Critics have accused the Supreme Court of slow-walking the case to prevent a trial before the election. The court in December rejected Smith’s request to take up the case on an expedited basis. When the justices eventually did intervene, they scheduled a hearing on the last argument day of the term.
Trump is accused of conspiring to defraud the US by promoting false claims of election fraud, pressuring the Justice Department to conduct sham investigations, pushing then-Vice President Mike Pence to undercut certification of Joe Biden’s victory and inciting a crowd to storm the Capitol.
Roberts said Trump was entitled to immunity for allegations related to efforts to press the Justice Department to intervene in the post-election contests. The majority said other pieces of the indictment might involve official acts that trigger immunity for Trump, telling Chutkan to dig into the record and make a new round of findings.
Those other allegations cover Trump’s communications with Pence, a range of state officials, other private individuals and the public.
With regard to Pence, the court pointed to his dual role under the Constitution as both vice president and Senate president, the capacity in which he oversaw the certification of Biden’s victory. Roberts said Chutkan should assess whether a prosecution based on Trump’s conversations with Pence “would pose any dangers of intrusion on the authority and functions of the executive branch.”
The court signaled that Chutkan will need to engage in a detailed analysis to determine which of Trump’s public comments, including his tweets and the speech he gave just before the Capitol riot, are fair game for prosecutors.
“Whether the Tweets, that speech, and Trump’s other communications on January 6 involve official conduct may depend on the content and context of each,” Roberts wrote.
In another blow to Smith, the court said he couldn’t use evidence of Trump’s official acts in making his case, even if the jury is told it can convict only based on his private conduct. Smith had urged the Supreme Court at least to let him use Trump’s official actions to show the outgoing president knew that his election-fraud claims were false.
Barrett parted with Roberts on that point, saying she would have let the trial judge make those evidentiary decisions on a case-by-case basis.
Roberts said presidents are completely immune for actions that fall within the exclusive powers the Constitution gives the chief executive. The court said other types of official acts are insulated unless Congress has explicitly said criminal law applies to the president.
The court said the immunity questions “must be addressed at the outset of a proceeding,” before the case goes to trial.
Chutkan previously said she would allow three months to prepare for a trial that could last two to three months. The schedule is important because of the broad expectation that, should Trump reclaim the White House in January, he would insist the Justice Department drop the prosecution.
Although the Supreme Court said in 1982 that former presidents can’t face civil lawsuits over official acts taken while in office, the justices had never before conferred criminal immunity. A federal appeals court had ruled 3-0 that Trump could be prosecuted.
